Saving Law Reviews From Political Scientists: A Defense of Lawyers, Law Professors, and Law Reviews

Benjamin Barton, Saving Law Reviews From Political Scientists: A Defense of Lawyers, Law Professors, and Law Reviews, 45 Gonz. L. Rev. 189 (2010).

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This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors and law reviews. Second, I show that Spitzer’s own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing, Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents’ scholarship is not only wrong on the merits, but is so bad that it is affirmatively dangerous and never should have been published. The efficacy of these arguments is crippled by claims that the individual rights theory of the Second Amendment is fatally, obviously, and laughably wrong as a matter of constitutional theory, case law, and history. Unfortunately for Spitzer, the Supreme Court held the exact opposite by a vote of 9-0 in District of Columbia v. Heller months after the publication of the book.

Further, Spitzer presents a remarkably weak case of causation between his alleged faulty scholarship and any resulting governmental actions. Even if Spitzer is correct that the scholarship highlighted is fatally wrong, it is quite a leap to say that this scholarship caused executive branch actions like George W. Bush’s claim of expansive executive powers after 9/11 or George H.W. Bush’s claim of an inherent line item veto.

Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning. By Robert J. Spitzer. New York: Cambridge University Press. 2008. Pp. ix, 195. $85.00. %CODE2%

Robert J. Spitzer is one of America’s best known Political Scientists. He has written over three hundred articles and multiple highly influential books. He has been repeatedly honored for his work and has been a leader in the American Political Science Association, the premier American political science organization.[1] When Robert Spitzer writes a book published by the Cambridge University Press arguing that legal training and law reviews gravely ‘distort’ the Constitution itself and concluding that the Constitution thus needs ‘saving’ from lawyers, the seriousness of that claim requires a response.[2]

Spitzer’s argument relies upon three central criticisms of American lawyers and law professors. First, Spitzer suggests that lawyers are congenitally disposed to ignore the truth in favor of their clients’ selfish interests.[3] Second, Spitzer argues that law professors are ill-suited to analyze the Constitution (and maybe law as a whole) because they are trained as lawyers/advocates rather than in the more neutral scientific method (like political scientists).[4] Last, Spitzer asserts that student-edited law reviews compound the above errors by publishing law professors’ facially erroneous constitutional interpretations, which are then used to distort and subvert constitutional meaning.[5]

Any law professor who has stood in front of a political scientist or an economist will recognize these three criticisms, and Spitzer makes no claim that they are particularly original.[6] Spitzer’s most original claim is that the combination of law professors disinclined to seek, or incapable of seeking, the truth in their scholarship with poorly edited student law reviews results in dangerous scholarship that does affirmative harm to the constitution. The heart of Sptizer’s book provides three examples of “wayward constitutional theorizing.” On the surface, I quite like this argument: it is simple and bold and attempts to connect three common criticisms into a much larger indictment of American constitutional theorizing.[7]

Nevertheless, after reading the book several times, I conclude that both the underlying criticisms and Spitzer’s examples do not add up to much. This review seeks to debunk Spitzer’s contention on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer’s book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship—so does that make political science scholarship worthless too? Or is that just how the journal-world works?

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents’ scholarship is not only wrong on the merits, but is so bad that it is affirmatively dangerous and never should have been published.[8] However, Spitzer’s third example, the Second Amendment, cripples the efficacy of these arguments. Spitzer claims that individual rights theory of the Second Amendment is fatally, obviously and laughably wrong, as a matter of constitutional theory, case law and history.[9] Unfortunately for Spitzer the Supreme Court held the exact opposite by a vote of 9-0 in District of Columbia v. Heller[10] just months after the publication of the book.

Further, Spitzer presents a remarkably weak case of causation between his alleged faulty scholarship and any resulting governmental actions. Even if Spitzer is correct that the scholarship highlighted is fatally wrong, it is quite a leap to say that this scholarship caused executive branch actions like George W. Bush’s claim of expansive executive powers after 9/11 or George H.W. Bush’s claim of an inherent line item veto.[11]

Part I describes Spitzer’s argument more fully. Part II argues that Spitzer’s criticisms of lawyers, law professors and law reviews are wrong in important ways that undermine his thesis. Part III then demonstrates how Spitzer’s examples show the failings of his arguments with particular clarity.

I. The Argument in Brief

Spitzer’s argument consists of three parts. The first two Chapters lay out the dual theoretical underpinnings of the book: Chapter One argues that by training and nature, lawyers and law professors do not care about the truth, only advocating a position; and Chapter Two notes that student-edited law reviews compound this problem. The last part of the argument stretches across Chapters Three through Five, where Spitzer lays out three examples of poor law review scholarship harming the Constitution. Part I describes each of these elements of the book in turn.

A. Lawyers and Law Professors are Trained Liars?

I add the question mark to the heading above as homage to the first subpart of Spitzer’s book, entitled “Lawyers as Liars?”[12] Spitzer includes a question mark after this phrase and even concludes the Chapter by proclaiming law is a “honorable, noble, and—above all—necessary profession.”[13] Yet, the great bulk of Chapter One’s treatment of lawyers and the advocacy system leaves little question how Spitzer would answer the questions presented above. Spitzer focuses on law as gladiatorial combat between zealous advocates with little incentive or willingness to present or speak the truth. He quotes others, arguing, “that the tenets of the legal profession often ‘encourage or even require outright lying’”[14] and “[t]he gladiator using the weapons in the courtroom is not primarily crusading after truth, but seeking to win.”[15]

According to Spitzer, this indifference to truth starts in law school, and legal practice further disciplines this notion/indifference.[16] Lawyers, law students and law professors learn to doubt objective material truth and to separate morals from law. Advocates who do not care about the truth or broader morality and serve only the narrow interests of their clients result naturally from law school, legal practice and the adversary system.

The irony in Spitzer’s account of the legal profession is that, while he admits that his version of the legal system may shock readers who find it “draconian or even immoral,”[17] he eventually concludes with a defense of lawyers, law schools, and the advocacy system.[18] This results because Spitzer’s actual target is not lawyers or the legal profession, but law professors. The entire point of the description of the immoral advocacy system and the congenital liars who inhabit it acts to tar the majority of law professors whose only training occurs in law school, and whose experience does not come from a PhD program, but through the practice of law.[19] Scholarly inquiry searches for truth without preconceived notions or specific answers in mind. Spitzer notes that legal training and the practice of law are thus particularly ill-suited as precursors to a life as a scholar.[20] In contrast to all other PhD trained faculty, law professors do not receive training in the rules of inquiry that govern research in the hard and social sciences. This adds up to the bugaboo of “advocacy scholarship” in law schools where law professors come to a conclusion first, and gather supporting arguments later.[21]

It is worth noting that, from the title of the book to the bulk of the material in Chapter One, Spitzer attempts a sleight of hand. Spitzer promises an argument for “Saving the Constitution from Lawyers” and that he will explain “How Legal Training and Law Reviews Distort Constitutional Meaning.” The book fails to address the first of these points. At the absolute maximum, Spitzer provides an argument against the constitutional theorizing of law professors that appears in law reviews. The book spends little time on the actual arguments that lawyers put forth in court in constitutional cases. Spitzer never argues that lawyers should not advocate zealously on behalf of clients. Nor does he argue that any particular constitutional analysis by lawyers is bad or wrong. To the contrary, Spitzer worries about academic legal writing in law reviews and its propensity towards “the cultivation of wayward constitutional theorizing.”[22] When he discusses the theorizing that lawyers do to win cases, he seems positively sanguine.[23] I suppose that “Saving the Constitution from Law Professors and Law Reviews” would have been a much less catchy title, but it would have been vastly more accurate.

B. Law Reviews Make It Worse

In Chapter Two, Spitzer argues that the flaws in the student-run law review system magnify the problems with the law professoriate exponentially.[24] This chapter begins with a short history of the law review system and a description of how reviews currently operate.

Spitzer’s attitude towards student-edited law reviews can be easily summed up: “To the contemporary academic world, the decision to allow students to create and run an academic publication, especially at a flagship university, might seem puzzling, even inexplicable.”[25] By comparison, most other academic disciplines use the “gold standard” of peer review rather than student editing.[26] This “inexplicable situation” results in multiple problems, and anyone familiar with the anti-law review literature will recognize them. There are too many law reviews.[27] Law review writing suffers from excess “length, redundancy, and footnoting.”[28] More worrisome remains the fact that law students are not experts in what they publish and, therefore, choose to publish poor, biased or incorrect scholarship.[29]

Spitzer does recognize that, as a historical matter, law reviews used to publish practitioner-oriented articles and students are better situated to review and edit that type of scholarship.[30] Similar to Spitzer’s late defense of the advantages of the advocacy system and law school training for lawyers, Spitzer offers a limp description of the advantages of the law review system. He notes that “law reviews publish many excellent articles,”[31] that they provide a good educational experience for students,[32] and that Spitzer himself has been published in law reviews.[33] Spitzer likewise recognizes that peer-review can result in demonstrably incorrect scholarship and cites the plagiarism charges against Stephen E. Ambrose and Doris Kearns Goodwin and the fabricated/misrepresented evidence used by Michael Bellesiles and John Lott.[34] Nevertheless, Spitzer concludes quite firmly that peer review remains demonstrably superior to student editing and the problems with student editing provide “a uniquely wide and fertile opportunity for the cultivation and propagation of wayward constitutional theories.”[35]

C. Three Case Studies of Harmful, “Wayward Constitutional Theories”

Chapters Three, Four and Five present the heart of Spitzer’s book and provide the book’s most original contribution. Spitzer argues that the combination of ill-trained law professors/advocates writing in student-run law reviews has resulted in dangerously wrong scholarship that later created bad public policy or even erroneous judicial decisions.[36] If Spitzer is right that law training and law reviews “distort” constitutional meaning, he greatly raised the stakes on the somewhat well-worn complaints in Chapters One and Two of the book.

Spitzer notes three different problematic constitutional interpretations that he claims arose as a result of poor scholarship: the idea of a constitutionally inherent line-item veto, as suggested in the presidency of George H.W. Bush (Chapter 3), the strong unified executive theory claimed by George W. Bush following 9/11 (Chapter 4) and the “individual right” theory of the Second Amendment (Chapter 5).

Each chapter follows the same basic pattern. Spitzer begins by laying out what he considers deeply erroneous constitutional arguments that nevertheless received support in law review articles.[37] He notes that the governmental actors involved relied upon faulty scholarship as support for their poor decisions.[38] He then lays out in great detail why he disagrees with the argument, usually relying on a battle over the historical record at the time of the Founders and/or case law. Spitzer uses each of these examples to prove that poor law review scholarship wrought serious harm upon the Constitution itself.

The book closes in Chapter 6 with some possible solutions to the problem that Spitzer identifies. These solutions include making law school more similar to a graduate school’s political science program, making law reviews more akin to traditional peer-reviewed publications and limiting the scope of legal academic scholarship to more traditional legal analysis.

II. Lawyers, Law Professors and Law Students

Spitzer’s argument relies on three key critiques of lawyers, law professors and law reviews, each of which is quite problematic.

A. Lawyers as Liars

Spitzer provides the first leg of the defense himself; he admits to being a supporter of: the adversary system, the role of lawyers in the system, and the training lawyers receive as a precursor to operating in the legal system. Thus, Spitzer concedes that the Constitution does not need saving from lawyers operating as lawyers.[39] To the contrary, constitutional interpretation by lawyers in legal cases obviously advocates for the position of the client and should be viewed as such.

Moreover, Spitzer’s basic point—that lawyers are congenitally pre-disposed to bend the truth or outright lie—is overblown and hardly reflects the reality of law practice or law school. First, Spitzer’s position as a political scientist should allow him to understand that lawyers, like politicians, may often be called upon to put the best face on unfortunate circumstances. As any marginally decent lawyer (or politician) will report, outright lying or evasion rarely, if ever, offers the most effective strategy.[40] To the contrary, lawyers, interested in serving their clients and winning, do their very best to massage the facts and present the best possible case, consistent with both the good and bad facts.[41]

One of the oddities about Spitzer’s book is his naïve insistence on a single, absolute truth, both in matters of constitutional interpretation and in lawsuits.[42] In Spitzer’s point of view, one side to a lawsuit must be “lying” because there is an objective truth to be discovered, and only one side’s story can be true.[43] In lawsuits, as in life, there are two sides to every story. Witnesses naturally remember and shade events differently, often to their own benefit. The adversarial system is not capable of, or aimed to, discover the absolute truth of past events. No human system can accomplish that. To the contrary, the adversary system allows each side to tell their story and then allows fallible decision-makers (either judges or juries) to choose whom to believe.

Moreover, it is flatly incorrect to say that law schools train lawyers to disregard the truth. To the contrary, since the 1970s law schools have added layer upon layer of legal ethics training.[44] Law schools train students that law is often indeterminate (i.e. there is not necessarily a single clear answer to every legal question),[45] and law schools rarely tell students anything about the truth or falsity of the facts in the cases they study. Yet this can hardly be equated to law schools actively teaching students to disregard the truth.

B. Law Professors as Incompetents

Spitzer’s critique of law professors cuts closer to the bone. It is certainly true that the bulk of American law professors (this author included) have no additional graduate degrees beyond a J.D. or other law related degree.[46] It is also true that the pursuit of a J.D. in law school is quite different from the pursuit of a Ph.D in the social sciences.

Spitzer’s critique does a nice job of highlighting the hybrid nature of the law professoriate. On one hand, unlike political scientists, law professors serve a critical pre-professional function of training lawyers for the practice of law. Given that student tuition supplies the great bulk of the revenue supporting law schools, and the important role that lawyers play in the functioning of our government and democracy, the need for satisfactory teaching of law students is absolutely critical. In short, most, if not all, law professors should be able to teach the practice of law, which likely requires that they have attended law school and had some experience as lawyers.

On the other hand, law professors are also required to publish scholarship,[47] and, as Spitzer points out, contemporary law professors often publish articles directly utilizing the tools and approaches of other academic disciplines.[48] Often, these law professors do not hold advanced degrees in these disciplines, and may not have been trained at all in those disciplines.[49] It may, in fact, be true that law professors should think twice before writing in these areas, and it may also be true that law reviews should be cautious about publishing “law and” scholarship from scholars without the requisite backgrounds or bona fides.

That said, Spitzer misses a key fact about lawyers and law professors. The job of a lawyer invariably involves “law and,” as a lawyer’s practice always involves some outside activity, from medical practice, to construction, to banking, plus the governing law. If one speaks to medical malpractice lawyers, they will tell you that it often feels like they understand the procedures at issue in the cases better than the doctors they depose. Similarly, legal standards and cases are not ever solely about the law, so the study of an area of the law necessarily requires outside expertise. Antitrust scholars must understand economics. Securities regulations scholars must understand stock offerings. The study of law, like the job of the law professor, naturally involves a breadth of knowledge and expertise in areas outside of law. Law professors, like lawyers, are often forced to pick up this expertise on the fly. In many cases this has worked out quite nicely.[50] It is also worth noting that Spitzer’s biggest problem is with the historical research of various law professors on constitutional issues; interestingly, Spitzer is not a trained historian, nor does he have a law degree.[51]

It would be impossible for law professors to teach or write about constitutional law without delving into the underlying history of the Constitution. The Supreme Court regularly relies upon historical antecedents (particularly from the time of the founders) in analyzing the Constitution, requiring presenting lawyers to be well versed/accustomed to broad research theory/understanding. As such, both practicing lawyers and law professors are continually required to comb the historical record. Whether or not courts and lawyers are good at exploring the historical record, and whether the Supreme Court should try to avoid basing decisions upon difficult and spotty historical records, are different questions. The fact remains that lawyers and judges must often explore the historical record to decide what the ‘right’ answer is based upon history. In this regard, law professors do no more or less than courts require of them.

Lastly, Spitzer is actually too circumspect in only suggesting that poorly trained law professors should decline to write about constitutional interpretation. Given that it is true that most law professors training occurred in law school instead of another Ph.D program and assuming that renders them poorly trained for true scholarly inquiry and inevitably prone to flawed ‘advocacy’ scholarship published by unwitting student-run law reviews, shouldn’t we be dubious of all legal scholarship? If there are examples of “wacky” or “bizarre” scholarship outside of constitutional law that have had deleterious effects, they would greatly strengthen Spitzer’s thesis. If there are no such examples that would naturally undercut his thesis.

C. Law Reviews

Spitzer recognizes that much law review scholarship is good,[52] and there is a certain irony that so many of the sources used to buttress his critique of the legal profession, law professors and law reviews come from law reviews and/or law professors themselves. For example, Chapter One’s critique of the adversary system rightly cites and quotes many of the foundational works,[53] including influential commentaries by law professors Stephen Gillers,[54] Monroe Freedman,[55] Deborah Rhode,[56] Geoffrey Hazard,[57] Marvin Frankel,[58] and David Luban.[59] Likewise, both Spitzer’s argument about the insufficiency and inappropriateness of legal training for scholarly work and the evils of student run law reviews rely heavily on influential works, often in law reviews by law professors.[60]

Again, Spitzer presents many fair critiques of the law review system. There are probably too many law reviews, and it is true that some poor scholarship receives publication every year. It is also true that law review articles tend to be too long and, in some cases, poorly written.[61]

Nevertheless, Spitzer’s argument does not rest upon stylistic concerns. Spitzer needs to prove that student-edited law reviews are more likely to publish biased or flatly incorrect scholarship than peer-reviewed journals. On this front, he does not carry the day.

Most importantly, I do not think law reviews are more likely to publish false information. To the contrary, this may be less likely. Anyone published with an American law review knows that students excel at one thing, often to the great consternation of authors: cite checking. Students ask that almost every proposition have a cite, and then they check each and every cite within an article to make sure it matches the proposition. By contrast, peer-reviewed journals generally rely on their authors to verify the accuracy of their footnotes and propositions.[62] This means that, at a minimum, whatever an author says in the text is followed by a footnote and is extremely likely to be true. The reliance upon fabricated evidence that occurred in some famous peer-reviewed work would have been impossible in a law review.

Spitzer also claims that student-edited law reviews are more likely to publish slanted or biased scholarship (advocacy scholarship).[63] As an initial matter, I note that Spitzer’s own book is hardly a paragon of neutrality. He calls Justice Alito and Justice Roberts liars[64] and accuses John Ashcroft of “shocking incompetence.”[65] Spitzer chooses as examples of “wayward” or “bizarre” constitutional thinking only actions during the presidencies of George H.W. Bush and George W. Bush, when Bill Clinton certainly pushed the legal envelope during his last years in office.[66] Spitzer’s narrow selection of issues and the description of the Second Amendment issue as an open and shut case certainly raise the question of whether Spitzer’s own book suffers from bias. Spitzer is not alone, and truly unbiased scholarship in the social sciences is relatively hard to come by.[67]

Spitzer notes that student editors can allow undeserved authorial hyperbole about the importance of their work.[68] Given that Spitzer’s book title claims to save the Constitution from lawyers, while actually addressing the malignant force of law review articles, I will let this claim speak for itself. Hyperbole may be distasteful but is hardly a danger to the Constitution.

Lastly, Spitzer notes that student editors may not force an author to include outside materials that disprove the author’s thesis.[69] This is a legitimate worry. While student editors do a masterful job of making sure the author’s citations are true, they may be underequipped to know when some other source or author’s work should be included. Yet, with the sheer volume of published information it remains extremely unlikely that a controversial and wrong idea drawing any attention will stay unrebutted for long.[70]

The three examples Spitzer offers are instructive on this point. In each case there were multiple law review articles (as well as books and peer-reviewed articles) on both sides of the issue,[71] and, regardless of whether Spitzer thought some were clearly wrong and others were clearly right, system-wide, the readers, policy-makers and judges have access to information to make their own call on the issues.[72]

III. Spitzer’s Three Examples

As noted above, the first two parts of Spitzer’s book present relatively well worn criticisms of law professors and law reviews. It is Spitzer’s three examples and his theory that law professors and law reviews combined to endanger the Constitution that make up his unique contribution. Nevertheless, Spitzer’s three examples have two critical flaws. The first is Spitzer’s insistence that the history underlying parts of the Constitution is so clear that the arguments he debunks are not only wrong, but so wrong that they never should have been published and are, in fact, dangerous to the Constitution.[73] The second is Spitzer’s weak case for causation.[74] While the proposed government actions that Spitzer derides were partially supported by law review articles, it is very dubious that law reviews actually caused anything. To the contrary, the government actions at issue would have occurred with or without academic support.[75] The scholarly support was, at best, a gloss on decisions already made.

A. The Fallacy of Constitutional Correctness

As I noted above, Spitzer seems surprisingly earnest for a political scientist. In each of his three areas of constitutional inquiry, Spitzer seems utterly convinced that there is a single right and wrong answer to the issue and that those who disagree with him should simply be shamed into silence by the sheer force of his arguments. Nevertheless, any historian of constitutional theory will note that changes (both large and small) within constitutional law can be attributed as much (or more) to changes in Supreme Court personnel and national preferences than to any claim to the “correctness” of the underlying constitutional theory or history.[76] Spitzer forgets that the history of constitutional law is written by the winners, not by law professors or political scientists. Constitutional “correctness” is never set in stone, but plays out over years of decisions across diversely assembled Courts.

Spitzer’s last example, the individualist view of the Second Amendment, makes this weakness particularly clear.[77] Spitzer calls the individualist view “stunningly and fatally defective,”[78] “erroneous” and “nonsensical,”[79] “startling,”[80] rife with “obvious problems,”[81] “wayward,”[82] and based upon an “imaginary past.”[83] He makes repeated sweeping and unequivocal statements, including “[n]othing in the history, construction, or interpretation of the amendment applies or infers [an individual right].”[84]

Spitzer ravages the historical arguments for the individualist view. He then reviews the Supreme Court’s pre-2008 Second Amendment case law and concludes that the cases are crystal clear in meaning and unquestionably support a collective rights interpretation. Spitzer doesn’t stop there. He argues that the Supreme Court’s various denials of cert. over the last years also signal the “inescapable conclusion . . . that the Supreme Court simply has no inclination to revisit the issue.”[85] In other words, Spitzer argues that the current Supreme Court is against the individualist view of the Second Amendment.[86]

The timing of Spitzer’s book is, in this regard, quite unfortunate. The Supreme Court adopted in full, the individual rights argument in District of Columbia v. Heller,[87] just months after publication of Spitzer’s book. In fact, while Heller was a 5-4 decision, it unanimously decided the underlying constitutional theory: all nine Justices recognized some form of the individual rights theory of the Second Amendment.[88] Spitzer’s book spent forty-seven pages rejecting this same constitutional theory as clearly, laughably, foolishly incorrect.

Given my general disregard for expansive claims of obvious constitutional correctness, I am hesitant to criticize Spitzer too much for his Second Amendment Chapter. If a different group of Justices decided Heller in a different time they might well agree with Spitzer. Nevertheless, Spitzer wrote a book that argues that the supporters of the individualist right theory are not only wrong, they are so wrong that their scholarship never should have been published and their work is dangerous. In this circumstance, it seems perfectly appropriate to point out that Heller’s unanimous repudiation of Spitzer’s theory cripples his overall thesis and well establishes the maxim that one should think carefully before committing hyperbole in the written word.[89]

B. Causation, Causation, Causation

Aside from the rather unfortunate example of the Second Amendment, Spitzer provides little evidence of allegedly ‘harmful’ scholarship infecting court decisions.[90] Instead Chapters Three, Four, and Five are all largely critical of executive branch reliance on faulty scholarship.[91] The problem with these Chapters is that, while the executive branch partially relied upon the scholarship Spitzer derides as faulty, it is naïve to think that this scholarship caused any of these actions.

First, it is worth wondering about the influence of law reviews altogether. Spitzer notes that law reviews are cited less frequently by courts and are utilized less frequently by practicing lawyers than ever before.[92]

Even if law reviews were influential, a political scientist like Spitzer should certainly understand that the actual effect of a law review article on the behavior or decisions of judges, let alone other governmental actors, is quite limited.[93] Political scientists have spent years building the literature of the attitudinal model, which argues that judges decide cases on the basis of their political preferences—not any deep understanding or analysis of the law—and then add the legal discussion as a justification for their pre-determined decision.[94] Under the attitudinal theory, judges make up their minds first based on political preference, and fill in the blanks later.[95] With this model of judicial decision-making, the most you could say about law review articles in a judicial opinion is that they are used as support for decisions that were already made.

If predisposed decision making is utilized by judges (as the attitudinal model suggests), the same has to be doubly true for political actors like White House or Justice Department officials. Lawyers in the first Bush White House argued for an inherent constitutional line item veto and in the second Bush White House for uniquely powerful unitary executive and commander-in-chief powers.[96] It is also true that in justifying these claims the White House used law review articles, among other things, for support.[97] I will even grant that it may be true that both Bush White Houses were wrong on the merits (although that is a much harder question).

One cannot reasonably assert or believe that a law review article “caused” either Bush White House to make these claims. In fact, Spitzer recognizes that the George W. Bush brief in support of expanded presidential powers “reveals an administration that had already decided the direction in which it wished to proceed and had gone in search of a post hoc legal justification to legitimize conclusions already drawn.”[98]

These decisions were made politically, and the law review support added a post hac defense. If the law review articles cited by Spitzer had been rejected by peer review, would these White House efforts been stillborn? Hardly. The lawyers at issue would have gone forward with what they established as support, regardless. The law reviews were at best icing on the cake. More likely, they were a cynical gloss added to support decisions made politically, not on the basis of the actual “truth” or “correctness” of the constitutional theories presented.

IV. Conclusion

“Saving the Constitution from Lawyers” raises some challenging issues about the nature of the law professoriate and its interaction with student-edited law reviews. Spitzer taps into the variety of issues that come with the hybrid nature of law schools: we are professional schools that also produce serious scholarly research, and sometimes the training and qualifications for each are not coextensive. That said, Spitzer fails at his main goal of proving that faulty scholarship poses any danger to the United States Constitution. Spitzer may have a legitimate disagreement over the scholarship he pillories, but it is too much for him to prove that the scholarship is so wrong as to be dangerous.[99]


* Associate Professor of Law, University of Tennessee College of Law. B.A. 1991, Haverford College; J.D. 1996, University of Michigan. The author gives special thanks to Indya Kincannon, Jeff Hirsch, Jennifer Hendricks, Helen Hershkoff, Glenn Reynolds, and the University of Tennessee College of Law for generous research support, and the Honorable Diana Gribbon Motz.

[1]. Robert J. Spitzer, Saving the Constitution From Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning 187-88 (2008).

[2]. See generally id.

[3]. See id. at 11-20 (discussing Justice Alito’s Supreme Court confirmation hearings where he downplayed previous writings, exposing his desire to overturn Roe v. Wade as expressly expressing his client’s view and explaining the adversary system generally).

[4]. See id. at 22-23, 30-31 (commenting that the value of truth-seeking in legal academia is subordinate to winning an argument and criticizing “advocacy scholarship” as a method of legal instruction).

[5]. Id. at 33-35.

[6]. Spitzer discusses lawyers’ and law professors’ observations that the “academic field” of law has largely rejected the scientific method, even as other fields have increasingly adopted it, and laments the trend’s negative impact on legal logic. Spitzer, supra note 1, at 23-24. He also highlights the vast volume of criticism of student-run law reviews. See id. at 46-48.

[7]. Over the years, I have been known to use narrower criticisms of the legal profession as an explanation for broader systematic failures, so I am a naturally sympathetic audience. See, e.g., Benjamin H. Barton, Do Judges Systematically Favor the Interests of the Legal Profession?, 59 Ala. L. Rev. 453 (2008); Benjamin H. Barton, An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation—Courts, Legislatures, or the Market?, 37 Ga. L. Rev. 1167 (2003).

[8]. See Spitzer, supra note 1, at 178 (for example, Spitzer contends an individualist view of the Second Amendment is contrary to when the Constitution actually says).

[9]. Id. at 129-30 (discussing his belief that the “founders, history, and the courts” do not support an individualist right to bear arms).

[10]. District of Columbia v. Heller, 128 S.Ct. 2783, 2799 (2008).

[11]. See Spitzer, supra note 1, at 62, 105-08 (first, asserting that the idea of line item veto was invented by law review articles, and second, connecting the theoretical expansion of Bush’s executive powers with John Yoo’s 2001 memorandum about the President’s power regarding the “conduct of military operations,” and citing to Yoo’s own law review articles).

[12]. Id. at 11.

[13]. Id. at 31. Spitzer expresses his support for the American adversary system several pages prior. Id. at 22. (“[T]here is good reason not only to accept but also to embrace the assertion that ‘the adversary system is one of the most efficient and fair methods designed for determining the [truth].’”) (quoting Monroe H. Freedman, Lawyers’ Ethics in an Adversary System 3 (1975)).

[14]. Spitzer, supra note 1, at 12 (quoting Michael Kinsley, Why Lawyers Are Liars, Slate, Jan. 20, 2006,

[15]. Spitzer, supra note 1, at 20 (quoting Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 Penn. L. Rev. 1035, 1039 (1975)). There are multiple other examples of this theory throughout Chapter One. Spitzer notes that while “a lawyer is not supposed to knowingly lie,” lawyers are rarely eyewitnesses so “lawyers are essentially free to make whatever argument best suits the client,” and “the values and norms of the profession may have the effect of placing truth farther down the list of lawyer priorities.” Spitzer, supra note 1, at 11. Spitzer calls both Justices Alito and Roberts liars based on their confirmation testimony because as lawyers “it was allowable for them to lie to their client regarding what they really thought about Roe because they knew that their client, Ronald Reagan, opposed Roe.” Id. at 12. Spitzer states the traditional defense of the advocacy system as a truth seeking process, but then argues that “[t]ruth to tell, the adversary system in operation tends to serve ‘the objective of resolving disputes rather than searching for material truth.’” Id. at 18 (quoting Stephen Landsman, Readings on Adversarial Justice: the American Approach to Adjudication 3 (1988)). He states that “lawyers may encourage a fact-finder to reach a wrong conclusion by. . . knowingly presenting perjured testimony or cross-examining truthful witnesses in a manner that undercuts their credibility.” Id. at 19. Spitzer describes Oliver Wendell Holmes’s distinction between law and morals, points out the “moral ruthlessness” of lawyers and concludes that “[t]o some readers, this account of the adversary process and other aspects of legal education might seem draconian or even immoral.” Id. at 21-22 (citing David Luban, Legal Ethics and Human Dignity 90 (2007) for the view that the adversary system exemplifies “moral ruthlessness”). He notes that lawyers are “skeptical about, if not indifferent to, the notion of objective truth.” Id. at 23 (quoting Marvin E. Frankel, Partisan Justice 23-24 (1980)).

[16]. See Spitzer, supra note 1, at 17-18 (discussing the adversarial system taught in law school and applied in practice).

[17]. Id. at 22.

[18]. Id. at 14, 22, 31, 32.

[19]. See generally id. at 17-31 (comparing at length law schools and the adversary system with the “social sciences and the rules of inquiry,” and noting that the latter focuses upon the objective and unbiased search for truth while the former seeks to persuade through a mix of untruths and advocacy scholarship).

[20]. Id. at 22-25.

[21]. Id. at 29.

[22]. Id. at 11.

[23]. Id. at 22 (“In fact, I side with defenders of the American system of justice. But I also believe that its traits have other, adverse consequences when removed from the practice of law.”) (emphasis added).

[24]. Id. at 36-38.

[25]. Id. at 38. One of the more humorous repeated ticks in the book is the use of conditional phrases like “might seem” and the possible opinions of third parties, like the “contemporary academic world” to soften harsh critiques and to suggest that while Spitzer raises them, he would not want to come right out and state them.

[26]. Spitzer, supra note 1, at 49.

[27]. Id. at 41 (pointing out that nearly all law schools have one or more journals).

[28]. Id. at 56.

[29]. Id. at 54.

[30]. Id. at 40, 43.

[31]. Id. at 59.

[32]. Id. at 48.

[33]. Id. at 4 n.10.

[34]. Id. at 51-52.

[35]. Id. at 59. It is worth noting that Spitzer’s criticisms of lawyers, law professors, and law reviews are not unique. He cites appropriately to the prior sources of these critiques, but the really original analysis is in his claim that these criticisms add up to actual constitutional harm. Nevertheless, it is ironic that one of Spitzer’s complaints against law reviews is that they publish “mind-numbing” and repetitive prose “which serves no other purpose than to duplicate what has already been published.” Id. at 56-57.

[36]. Id. at 10-11 (referencing the decision of Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007)).

[37]. See, e.g., id. at 61-62.

[38]. See id. at 62 (“The fact that President Bush never actually tried to use this [inherent item veto] power by no means minimizes its significance for the constitutional balance of power between the executive and legislative branches. More important for this study is the fact that this flight of constitutional fancy was born and legitimized in the pages of law reviews.”).

[39]. See id. at 22 (“In fact, I side with defenders of the American system of justice. But I also believe that its traits have other, adverse consequences when removed from the practice of law.”) (emphasis added); see also id. at 31 (“Yet, my argument is that lawyers are well equipped by the principles and training of their discipline to function within the professional world for which they are prepared but are poorly equipped to engage in the scholarly world as it pertains to constitutional scholarship.”).

[40]. Just ask Presidents Nixon and Clinton about how lying/evading worked out for them.

[41]. Compare L. Timothy Perrin et al., The Art & Science of Trial Advocacy 6 (2003) (“Trial lawyers’ successes come from hard work and attention to the details; from the advocate’s sincerity and authenticity; from facts marshaled and presented in such a way that they appeal to both logic and emotion; and from a cause or a principle that the jurors will claim as their own.”) with Douglas S. Lavine, Cardinal Rules of Advocacy: Understanding and Mastering Fundamental Principles of Persuasion 33 (2002) (describing all good advocacy as “honest and respectful” and the effective advocate as “not trying to trick of deceive his audience”).

[42]. See, e.g., Spitzer, supra note 1, at 23-24.

[43]. See id. at 23 (suggesting that lawyers are skeptical or indifferent to “objective truth”) (quoting Marvin E. Frankel, Partisan Justice 23-24 (1980)). Further, Spitzer’s repeated descriptions of perjured or knowingly misleading arguments makes it seem like these events occur in every legal transaction and are a critical, daily part of a lawyer’s job.

[44]. See Stephen Gillers, Eat Your Spinach?, 51 St. Louis U. L.J. 1215, 1217-18 (2007).

[45]. Benjamin H. Barton, The Emperor of Ocean Park: The Quintessence of Legal Academia, 92 Cal. L. Rev. 585, 593 (2004) (calling this aspect of law school “the siren song of indeterminacy”).

[46]. See id. at 15 (citing a study finding that less than ten percent of tenure-track law professors have doctorates in the social sciences).

[47]. The ABA accreditation standards require, among many other things, a faculty engaged in scholarly research and writing. See American Bar Association, Standards for Approval of Law Schools, 401 & 402 (2009-2010), 20082009StandardsWebContent/Chapter%204.pdf.

[48]. Spitzer, supra note 1, at 42.

[49]. See id. at 15.

[50]. Richard Posner, the progenitor of law and economics, is not a formally trained economist. The University of Chicago, The Law School, Richard A. Posner, (last visited Oct. 28, 2009). Lawrence Friedman, author of the seminal American legal history text, is not a trained historian. SLS Home, Directory, Lawrence M. Friedman, Marion Rice Kirkwood Professor of Law, (last visited Oct. 28, 2009). Lawrence Lessig does not have a degree in computer science. Lessig, Short Biography, (last visited Oct. 28, 2009).

[51]. Spitzer, supra note 1, at 187-88.

[52]. Id. at 59.

[53]. See id. at 18-22.

[54]. Spitzer, supra note 1, at 18-19 & nn.30 & 32, (citing Stephen Gillers, The American Legal Profession, in Fundamentals of American Law 166-68 (Alan B. Morrison ed., 1996)).

[55]. Spitzer, supra note 1, at 18-22 & nn.31, 39, 43, 53 (citing Monroe Freedman, Lawyers’ Ethics in an Adversary System ( 1975)).

[56]. Spitzer, supra note 1, at 20 & n.37 (citing Deborah Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589, 604 (1985)).

[57]. Spitzer, supra note 1, at 20 & n.36 (citing Geoffrey C. Hazard, Jr., Ethics in the Practice of Law 133 (1978)).

[58]. Spitzer, supra note 1, at 18 & 20-21 nn.29, 41, 44 (citing Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031 (1975)); Spitzer, supra note 1, at 19-20, 22-23 & nn.35, 53, 55 (citing Marvin E. Frankel, Partisan Justice (1980)). Marvin Frankel was a law professor at Columbia and a federal judge. See Steven Greenhouse, Marvin Frankel, Federal Judge and Pioneer of Sentencing Guidelines, Dies at 81, N.Y. Times March 5, 2002, at A17.

[59]. Spitzer, supra note 1, at 20, 22 & nn.42, 51 (citing David Luban, The Adversary System Excuse, in The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics 86, 90 (David Luban ed., 1983)); Spitzer, supra note 1, at 22, 24 & nn.53, 61 (citing David Luban, Lawyers and Justice: An Ethical Study (1988)). Chapter One’s discussion would have been enriched by including William H. Simon, The Practice of Justice (1998) and Mary Ann Glendon, A Nation Under Lawyers (1994), two of the absolute best books in this area. Glendon is cited later in the discussion of “advocacy scholarship.” Spitzer, supra note 1, at 30 & nn.85-86 (citing Mary Ann Glendon, A Nation Under Lawyers 208, 209 (1994)).

[60]. On the inability of law professors to write true scholarship Spitzer quotes and cites law professors (among others) Anthony Kronman, Arthur Miller, and Lee Epstein (with co-author and political scientist Gary King). Spitzer, supra note 1, at 23 & n.56 (citing Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession vii (1993)); id. at 23-24 & nn.58-59 (citing Arthur S. Miller, The Myth of Objectivity in Legal Research and Writing, 18 Cath. U. L. Rev. 291, 291-92 (1969)); id. at 25, 29 & nn.64, 80-82 (citing Lee Epstein & Gary King, The Rules of Inference, 69 U. Chi. L. Rev. 1, 9 & n.23, 15 (2002)); id. at 30 & n.84 (citing Lee Epstein & Gary King, A Reply, 69 U. Chi. L. Rev. 191, 194 (2002)). On the various problems with student-edited law reviews, Spitzer cites (among others) law professors James Lindgren, Bernard J. Hibbitts, Lawrence M. Friedman, Richard A. Posner, Fred Rodell, and Robert Stevens. id. at 33-49 & nn.2-74.

[61]. I have read enough peer-reviewed political science journals to know that stilted or repetitive writing, and articles that add incrementally, if at all, to the existing literature, are not a unique problem to law reviews.

[62]. I have published in a peer-reviewed journal. See Benjamin H. Barton, Is There a Correlation Between Law Professor Publication Counts, Law Review Citation Counts, and Teaching Evaluations? An Empirical Study, 5 J. Empirical Legal. Stud. 619 (2008). I am also on the Board of Editors of The Clinical Law Review, a peer-reviewed journal, and it is certainly not true that peer-reviewed publications sweat the footnotes in the way of student-edited law reviews. Cf. Max Schanzenbach, Peer-Reviewed versus Student-Edited Journals, Empirical Legal Studies Blog, (last visited September 28, 2009) (noting the cite checking advantage for student run law reviews). Some of the most famous examples of fabricated research in peer-reviewed journals would have been impossible in a student-edited journal because the students check each and every source carefully.

[63]. Spitzer, supra note 1, at 47-48.

[64]. Id. at 12-13.

[65]. Id. at 170.

[66]. See Clinton v. Jones, 520 U.S. 681, 705-06 (1997) (holding unanimously that sitting presidents generally are not entitled to immunity from civil lawsuits based on their unofficial misconduct); Jonathan L. Entin, Executive Privilege and Interbranch Comity After Clinton, 8 Wm. & Mary Bill Rts. J. 657, 668-74 (2000) (describing various Clinton strategies to expand executive privilege).

[67]. This is an area where Spitzer and I simply disagree. Writing is by its nature persuasive, and bias in some form is common. This is one reason why law scholarship drifts towards empirical work although empirical work can certainly suffer from biases as well. See Richard H. McAdams & Thomas S. Ulen, Empirical and Experimental Methods of Law: Introduction, 2002 U. Ill. L. Rev. 791, 791-94 (2002).

[68]. Spitzer, supra note 1, at 1-3.

[69]. See id. at 2-5.

[70]. Spitzer’s own work in this book and earlier debunking the three “wayward” constitutional theories described in the book is an excellent example of this phenomenon in action.

[71]. Spitzer cites to these articles throughout the footnotes of Chapters 3-5, and the sheer volume of cited material makes clear that, whatever else can be said about these debates, there certainly was a full and open debate where everyone—including Spitzer—had a chance to state their case.

[72]. For Spitzer’s thesis to hold, it is not enough that some law review articles he disagreed with were published; the articles must be so invidious as to harm the Constitution. If the ideas were given a full airing though, it is hard to see how the harm (if indeed there is harm) can be imputed to the law review system or the law professoriate.

[73]. See discussion infra Part III.A.

[74]. See discussion infra Part III.B.

[75]. See id.

[76]. See, e.g., David M. Levitan, The Effect of the Appointment of a Supreme Court Justice, 28 U. Tol. L. Rev. 37 (1996) (“There is general agreement that changes in the membership have affected, and in all likelihood will continue to affect, decisions of the Court. While there is some difference of opinion as to the extent of the impact a change of membership has on the court . . . there is no disagreement that membership changes do affect Court decisions and influence constitutional law.”).

[77]. The “individualist view” of the Second Amendment argues that “the ownership of firearms is a constitutionally based protection that applies to all individuals, without any attachment to militias or the government, just as free speech and the right to counsel apply to all individuals.” Spitzer, supra note 1, at 145. For a succinct and prescient discussion of the individualist view, see Glenn Harlan Reynolds, Gun by Gun, Legal Affairs, May-June 2002, at 19-20. Spitzer proscribes (quite vociferously) to the “collective rights” theory, which posits that the Second Amendment only guarantees state militia rights and “the Second Amendment provides no protection for personal weapons use, including hunting, sporting, collecting, or even personal self-protection.” Spitzer, supra note 1, at 133.

[78]. Spitzer, supra note 1, at 130.

[79]. Id. at 134.

[80]. Id. at 150.

[81]. Id. at 163.

[82]. Id. at 175.

[83]. Id. at 176.

[84]. Id. at 148.

[85]. Id. at 159.

[86]. See id. at 143 (“The inescapable conclusion is that the Supreme Court has considered the matter settled and has no interest in crowding its docket with cases that merely repeat what has already been decided.”).

[87]. District of Columbia v. Heller, 128 S.Ct. 2783 (2008).

[88]. See id. at 2790-805 (majority opinion of Scalia, J., joined by Roberts, Alito, Thomas, and Kennedy, JJ.); id. at 2822-47 (Stevens, J., dissenting, joined by Souter, Ginsburg, and Breyer, JJ.) (“The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals.”). Id. at 2822; see also Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 Nw. U. L. Rev. 2035, 2035 (“What Heller is most notable for is its complete and unanimous rejection of the ‘collective rights’ interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.”).

[89]. While Spitzer is critical of law professors’ insistence that there are two sides to most issues, this logic would have served him well in his book, as it would have forced him to at least confront and address the arguments of the other side.

[90]. Note that this fact alone greatly limits the amount of “harm” that any of these theories caused, as courts have the final say on the Constitution, not members of the Justice Department or the President’s staff. Moreover, as Spitzer himself notes in Chapters Three and Four, courts have explicitly or implicitly rejected the theories. See Spitzer, supra note 1, at 60-61, 118-21.

[91]. Chapter Three addresses George H.W. Bush’s constitutional claim to an inherent line item veto. See id. at 62. Chapter Four covers George W. Bush’s claims to expansive executive privilege. See id. at 90-92. Chapter Five includes a critique of John Ashcroft’s position on the Second Amendment. See id. at 166-72.

[92]. Spitzer, supra note 1, at 181.

[93]. See Joshua D. Baker, Student Work: Relics or Relevant?: The Value of the Modern Law Review, 111 W. Va. L. Rev. 919, 928 (2009) (“There have been two substantive findings in regards to law reviews and judicial citations: (1) courts most frequently cite journals that are regarded as elite; and (2) courts cite journal articles less frequently than ever before.”).

[94]. The attitudinal model was first laid out in Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993); see also Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002).

[95]. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model 30-31 (1993).

[96]. Spitzer, supra note 1, at 61-63, 90-92.

[97]. Id. at 62, 103-08.

[98]. Id. at 122.

[99]. So rest easy America, the Constitution will be fine.

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